Barack Obama vs. Anthony Kennedy?

Stephen F. Hayes

April 3, 2012 10:05 PM

Did President Obama pick a fight today with the man who could well be the decisive vote in the Supreme Court’s consideration of his health care plan?

On Monday, Obama aggressively cautioned the Court against overturning the law, warning about “unelected” judges taking an “unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” His tone was strident and his facts were wrong. It would be neither unprecedented nor extraordinary for the Supreme Court to find the individual mandate unconstitutional, and Obama’s health care plan passed with the barest of majorities and only after horse-trading that might be called extraordinary even by casual observers of the legislative process. Not surprisingly, the president’s short rant did not play well.

So today he tried to clean it up. In response to a question after his speech about the Republican budget, Obama measured his words carefully and softened his critique. “The point I was trying to make is that the Supreme Court is the final say on our Constitution and laws and all of us have to respect it. But it’s precisely because of that extraordinary power that the court has traditionally exercised restraint and deference to our duly elected legislators, our Congress. And so the burden is on those who would over turn a law like this.”

That may well be Obama’s opinion. It doesn’t appear to be one that’s shared by Justice Anthony Kennedy, widely regarded as the decisive vote on the question of the individual mandate. On the second day of oral arguments, Kennedy grilled Solicitor General Donald Verrilli on what Kennedy described as the “fundamental” changes the law would mean for the relationship between the citizens and their government. Kennedy made clear that it was the government who has the “heavy burden” to demonstrate that the law in constitutional.

“Could you help—help me with this. Assume for the moment—you may disagree. Assume for the moment that this is unprecedented—this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification? I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”

Obama’s comments Monday gave rise to speculation that the president was trying to intimidate the Court into upholding the law. The more likely explanation is that the White House was setting up its political argument in the event that the law is invalidated.

Whatever the explanation, Obama’s views of the burden are very different than Anthony Kennedy’s.